Damages from date of judgement

Citation

Waterson, G. and Lee, R. (2000), "Damages from date of judgement", Property Management, Vol. 18 No. 5. https://doi.org/10.1108/pm.2000.11318eab.002

Damages from date of judgement

Damages from date of judgement

Alcoa Minerals of Jamaica Inc. v. Broderick (2000), The Times, 22 March. In this case the question was not who should be liable to pay the damages but from what date they should be awarded, the date of the damage or the date of judgement? The case arose in nuisance. Pollutants from the defendant's smelting plant in Jamaica caused corrosion to the galvanised zinc panels of the roof of the plaintiff's house as well as injury to other property and his health. When damage first occurred the plaintiff repaired it but by 1989 damage had occurred again. This time, however, he was unable to afford the necessary repairs. He had commenced proceedings against the defendant in 1990 and at that time the estimated cost of repair was $135 each for 1,564 square feet of the building making a total of $211,140. By March 1994 due to inflation, the cost had increased to $600 per square foot and the plaintiff was allowed to amend the sum claimed to $938,400.

Two questions arose on appeal: first, was the plaintiff entitled to have the damages assessed at some date other than the date by which physical damage was complete? Second, should the fact that he could not afford to pay for repairs until he had obtained judgement be ignored when fixing the date by which damages had to be assessed?

Lord Slynne delivered the unanimous judgement of the Privy Council. He said that the general rule in tort is that damages should be assessed at the date of the breach: Miliangos v. George Frank (Textiles) Ltd. (1976) AC443. However, Lord Wilberforce had made it clear (at 468D) in that judgement that the rule was subject to exception if adoption of it produced injustice. In that case the court had discretion to take some other date. Thus the rule was not a conclusive answer to the first of the questions in this appeal.

The answer to the second question turned on a consideration of the decision in Leisboch Dredger v. Edison (The Leisboch) (1933) AC449. The defendant contended that this precluded the plaintiff from claiming the cost of repair at the date of judgement as the delay was due to his impecuniosity and not the defendant's breach of duty.

After a detailed examination of that case their Lordships felt that this case was distinguishable from the position in the Leisboch case. In that case the cost of hiring a new dredger was categorised as a separate head of damage from the cost of replacing the damaged dredger: the cost of hiring being due to a separate cause, that is, the plaintiff's impecuniosity which prevented them from replacing the damaged dredger immediately. In the instant case there were not two heads of damage, only one, the cost of repairing the roof. The increase in that cost was due solely to inflation as a result of a fall in the value of the Jamaican dollar.

The need to repair the roof was a direct consequence of the tort and the real question was whether the plaintiff had fulfilled his duty to mitigate the damage. According to Lord Wright in the Leisboch case there might have been the possibility of an alternative argument that the financial embarrassment of the owners of the dredger was too remote. In this case it was foreseeable that a person in the position of the plaintiff would or might not have the necessary funds to repair it and that his ability to do so would depend on establishing the liability of and recovering damages from the defendant. He was not in breach of his duty to mitigate and he had behaved reasonably in waiting until money was available from the defendant. It was not suggested that the delay in obtaining judgement was his fault. Furthermore, there was no windfall in this for the plaintiff.

The defendant had not shown that the plaintiff could or should have gone ahead and paid for repairs at an earlier stage. This was not a case where liability was obvious and, thus, where the plaintiff should have borrowed money even at a high rate of interest pending the eventual determination of the case. Justice therefore required that at the earliest the date of judgement by the trial judge be taken as the date for the assessment of damages.

Geoffrey WatersonRosalind Lee

The law is stated as it is understood to be up to 1 August 2000.